Section 2 of the Voting Rights Act at the Supreme Court

The Supreme Court will decide this term if the Voting Rights Act still allows voters of color to challenge racially discriminatory voting maps in court.

The question arises in a redistricting case from Louisiana that the Court is hearing for the second time. Louisiana v. Callais was a relatively straightforward racial gerrymandering case when the justices first heard argument on it last term. At issue was a narrow, case-specific question of whether state lawmakers had allowed race to unconstitutionally predominate when redrawing the state’s congressional map to remedy Voting Rights Act violations found by a federal district court. The Supreme Court could have struck down the map on that ground and forced the legislature to take another try at drawing one. Such a ruling would have impacted Louisiana voters but would not necessarily have had many implications beyond.

But on the last day of its term, rather than decide the case on racial gerrymandering grounds, the Court made the surprising announcement that it was setting the case for reargument on a different and far more sweeping question: whether Section 2 of the Voting Rights Act itself remains constitutional.

This article looks at how Section 2 works in the redistricting context and how its weakening or elimination could impact representation for communities of color around the country.

Passed 60 years ago, the Voting Rights Act is one of the most important and transformative laws in American history. Overnight, the law ended discriminatory practices like poll taxes and literacy tests and, for six decades, has ensured that voters of color and language minorities have equal access to the ballot box.

At issue in the Callais case is Section 2 of the law, which currently provides that states and localities may not use an electoral practice or procedure, including a voting district map, if the practice or procedure “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” In the districting context, this occurs “if, based on the totality of circumstances, it is shown that the political processes leading to the nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected” by the law.

Unlike other provisions of the Voting Rights Act, which applied only in some parts of the country and were time limited, Section 2 follows the model of traditional civil rights litigation remedies: It is both permanent and applies nationwide wherever its conditions are triggered.

For the first 17 years of the Voting Rights Act, Section 2 of the law was used only sparingly in connection with redistricting.

This changed after 1982 when Congress, with wide bipartisan support, amended the Voting Rights Act to make clear that voters could challenge electoral systems based both on a system’s extreme racially discriminatory effect as well as the intent of its creators. The amendments overturned Mobile v. Bolden, a 1980 Supreme Court case that had limited Section 2 to intentional discrimination claims.

The amendments opened the door for voters to challenge electoral maps and at-large election systems that, whether by design or not, diluted the votes of communities of color by locking them out of any reasonable chance of winning power.

The results were swift and transformative, especially for local governments in the South. By the early 1990s, hundreds of cities, towns, and counties in the region had ended use of discriminatory at-large election systems — many dating to the Jim Crow era — and replaced them with single-member districts or alternative election systems that allowed candidates preferred by communities of color to win elections for the first time since Reconstruction.

Voters around the country also turned to Section 2 to successfully push for changes to discriminatory congressional and legislative districting plans. Faced with Congress’s mandate and pressure from voters, Alabama, Florida, North Carolina, and Virginia redrew congressional maps after the 1990 census to create the first majority-minority congressional districts in those states.

This work continues. In the last decade, federal courts have ordered changes to 29 maps or electoral systems around the country based on Section 2. These include changes to congressional maps in Alabama, Georgia, and Louisiana, legislative maps in Alabama, Georgia, Louisiana, Mississippi, North Dakota, and Washington, and 19 local government maps or at-large electoral systems.

Although the 1982 amendments have been used to challenge racially discriminatory maps and at-large electoral systems at all levels of government, their greatest impact has been at the local level, with around half of all Section 2 cases challenging the use of at-large elections for city councils, school boards, and other mostly non-partisan local bodies.

Section 2 is a powerful tool for fighting racial discrimination but one with exacting requirements.

While opponents of the Voting Rights Act often caricature Section 2 as requiring race-based districting whenever a minority community gets large enough in size, the statute demands far more than just numerosity. Indeed, there are many places in the country today where even very sizeable minority communities could not bring a claim for creation of a minority district because they do not meet one or more of the statute’s other requirements.

The Three Gingles Preconditions

Since 1986, claims alleging that a redistricting plan or at-large election system violates Section 2 have been governed by a demanding multipart framework first laid out by the Supreme Court in Gingles v. Thornburg.

At the heart of this framework are three initial “preconditions” designed to identify situations where the design of an “electoral law, practice, or structure interacts with social and historical conditions . . . to minimize or cancel out minority voters’ ability to elect their preferred candidates.” If plaintiffs fail to prove the existence of all three, a Section 2 claim will fail. If in the future any of the preconditions cease to exist, a jurisdiction’s Section 2 liability will sunset.

Two of the preconditions focus on the presence and degree of racially polarized voting in the geographic area where a Section 2 claim is being asserted — that is to say the degree to which candidate preferences of white and non-white voters diverge sharply along racial lines.

For purposes of these preconditions, it is not enough for plaintiffs to show that there is some difference in the candidate preferences of white and non-white voters. Instead, plaintiffs must show that the divergence is so extreme and durable that minority voters, despite being strongly united in supporting candidates, are typically unsuccessful electing them because white voters vote overwhelmingly as a bloc for different candidates. The result is a system that always or nearly always defeats the minority community’s preferred candidates.

Aside from showing a prolonged pattern of racially polarized voting exists, the Gingles preconditions also require plaintiffs to present a map showing that it would be possible to remedy the effects of racially polarized voting through creation of a voting district where minority voters are a majority of the population.

This map requirement is also strict. As interpreted by the Supreme Court, the alternative minority-majority district presented by plaintiffs in the Gingles preconditions phase must be reasonably configured and substantially adhere to a jurisdiction’s districting rules, such as directives limiting county splits. The Supreme Court’s racial gerrymandering jurisprudence also imposes further constraints. While race can be a consideration in the design of the alternative district, under the court’s racial gerrymandering cases, race cannot predominate or be the sole basis for how a district’s boundaries are drawn.

A Final Step

If a Section 2 plaintiff provides evidence establishing the three preconditions, the case goes to a fourth and final step known as the “totality of the circumstances” analysis. In this step, courts examine whether the electoral disadvantage caused by extreme racially polarized voting is further compounded by adverse local conditions.

This step includes consideration of factors such as the degree to which local campaigns use overt or subtle racial appeals in talking to voters, whether the slating or endorsement process in a jurisdiction is racially exclusionary, and whether minority communities face other significant barriers to voting and equal participation in the electoral process, including barriers caused by the lingering effect of past racial discrimination.

Plaintiffs must succeed at all four steps in the process to establish Section 2 liability.

Alabama offers an example of how the Gingles framework operates in the real world. Under Alabama’s 2021 congressional map, heavily Black parts in the south-central part of the state — a region known as the Black Belt because of its rich agricultural soils — were divided among four different districts.

In one district, Black voters were a substantial majority of the population. However, in the other three districts, they comprised 30 percent or less thanks to surgical line-drawing choices, such as the decision to place Montgomery and next-door Tuskegee (both heavily Black cities) in separate districts.

 This division of Black communities would not have mattered if the voting patterns of Black and white voters were not starkly polarized by race. However, as the court in the case found, Black Belt politics were almost a textbook example of the extreme racially aligned politics implicated by the Gingles framework.

While the region’s Black voters on average supported their candidates of choice with 92 percent of vote, white voters were nearly as unshakably cohesive in voting as a bloc for other candidates. This extremely high rate of racially polarized voting — some of the most severe in the country — meant that white voters, who were often indifferent or even hostile to the concerns of Black voters, controlled the outcome in three out of four of the region’s districts.

Black voters challenged the map under Section 2, presenting multiple maps showing that it was possible to overcome the effects of this racially polarized voting by placing the Black Belt in two more compact districts rather than four, while at the same time, complying just as well, if not better, with the state’s traditional redistricting rules.

A three-judge panel agreed, finding in a 225-page opinion that the plaintiffs’ illustrative maps were “at least as geographically compact as those in [Alabama’s] Plan, respect traditional boundaries at least as much as the Plan, protect important communities of interest, [and] protect incumbents where possible.”

Indeed, the court found that the plaintiffs’ illustrative maps did better at keeping Black Belt communities together, noting that the Black Belt was “a community of interest of substantial significance” based on its rural geography and significant shared representational needs.

The district court also found that the totality of circumstances merited a Section 2 remedy,

finding “substantial and undeniable” evidence of lingering socioeconomic disparities in the region that “hinder Black Alabamians’ opportunity to participate in the political process,” including poverty levels rarely seen in developed countries.

The court also found that the effects of racially polarized voting in the Black Belt were further compounded by ongoing highly racialized nature of Alabama politics, including the continued frequent use of subtle or overt racial appeals in political campaigns.

After the Supreme Court affirmed the decision, the district court put in place a plan that reunited Black Belt communities, leading to the election of a congressman supported by Black voters in 2024.

For every Section 2 success, however, there are unsuccessful cases.

Indeed, researchers at the University of Michigan School of Law found that of the 141 Section 2 cases litigated to a court opinion since 2002, only around 45 percent were successful — a significant decline from the first decade after adoption of the 1982 amendments when around three-quarters of cases were successful.

There are multiple reasons for this. In some parts of the country, minority voters may not be politically cohesive and prefer different candidates. For example, a recent case challenging use of at-large elections in a suburban Dallas school district found that the district’s minority voters split sharply along a “conservative/liberal line” in the district’s non-partisan elections, splintering over issues such tax and public education policies.

White voters similarly may not vote sharply along racial lines. This is increasingly true, especially outside the South. California’s independent redistricting commission found, for example, that while white voters still vote cohesively as a bloc to defeat minority-preferred candidates in some parts of Los Angeles and southern California, such bloc voting did not exist in the greater San Francisco Bay area. Likewise, in a challenge to Boston’s city council districts, the court rejected a Section 2 claim after finding that white voters in the part of the city where the claim was being asserted did not bloc vote. Instead, the Black community’s preferred candidates regularly were able to win by outreach and appeal to white voters.

Finally, it may not be possible to draw an alternative majority-minority district based on the distribution of minority voters and declining rates of residential segregation. This is especially true at higher levels of government, such as the U.S. House, where the population required for a district is quite large. While racially polarized voting may exist and even be extreme, it simply may not be possible to draw a compact majority-minority district while avoiding racial gerrymandering if hundreds of thousands rather than tens of thousands of voters are needed.

As the nation and its politics continue to evolve, so will the number of places where Section 2 liability exists.

At present, 16 districting plans or at-large electoral systems (12 in the South) are being challenged in ongoing Section 2 litigation, either in trial court or on appeal.

Seven of these challenges involve legislative maps, while another 4 involve local government elections and one — in Mississippi — involves a challenge to state supreme court districts.

Four cases involve congressional maps, and in three of those maps have already been redrawn but the state is appealing the finding of liability. One involving Texas is still awaiting the trial court’s determination of whether the map violates Section 2.

An adverse ruling in Callais placing limits on Section 2 claims — or possibly ending them altogether — will have ripple effects at all levels of government.

Even though the case before the Supreme Court involves a high-profile congressional redistricting dispute, the greatest impact of a weakening of Section 2, or worse its wholesale elimination, will almost certainly be at the local-government level.

Four decades after the Supreme Court adopted the Gingles framework, local government cases — most involving non-partisan elections — continue to account for around two-thirds of all vote dilution cases, with most of those cases involving challenges to at-large electoral systems.

Without a strong Section 2, the risk is not only that forward progress would grind to a halt, but jurisdictions could be incentivized to return to at-large and other racially discriminatory systems that had locked Black voters in Ferguson, Missouri, and Native voters in Benson County, North Dakota, out of power.

The aftermath of the Supreme Court’s 2013 gutting of the preclearance requirements of Section 5 in Shelby County v. Holder offers a sobering, cautionary tale. Shortly after the end of preclearance, the city of Pasadena, Texas rushed through changes to its city council map that converted two single-member districts to at-large districts, diluting the growing political influence of Latino voters. Although Latino voters were able to reverse the changes in litigation contending that the changes were intentionally discriminatory, it took four years of litigation to win relief.

An adverse ruling in Callais could see a repeat around the country.